Ausbao (286 Sussex St) Pty Ltd v The Registrar-General of New South Wales [2021] NSWSC 1651

Supreme Court New South Wales

Medium Neutral Citation: Ausbao (286 Sussex St) Pty Ltd v The Registrar-General of New South Wales [2021] NSWSC 1651 Hearing dates: 31 May 2021, 1-3 June 2021, 8 July 2021, final written submissions 7 October 2021 Date of orders: 15 December 2021 Decision date: 15 December 2021 Jurisdiction: Equity Before: Robb J Decision: The Court orders that the plaintiff's claim is dismissed with costs. See pars [102], [192], [205], [206], [227], [300], [308], [331], [338], and [405]. Catchwords: LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the plaintiff claimed compensation from the Torrens Assurance Fund pursuant to s 129(1)(a) or s 129(1)(c) because of an error recorded by the Registrar-General on a deposited plan — Where the plaintiff claimed it suffered loss or damage because it relied on the deposited plan in making the decision to acquire the land — Where the Registrar-General argued that the chapeau to s 129(1) only refers to the operation of the provisions of the Act dealing with title to land and indefeasibility — Where the Registrar-General claimed that as any loss or damage suffered by the plaintiff was not related to title to land or indefeasibility, the Torrens Assurance Fund is not liable to compensate in the circumstances — Where the Court found that the chapeau to s 129(1) did not imply that any loss or damage suffered as a result of the Act must be in relation to title to land or indefeasibility — Where the Court held that the loss or damage suffered by the plaintiff was materially caused by an act of the Registrar-General in the execution or performance of his functions or duties under the Act pursuant to s 129(1)(a) as well as by an error in the Torrens register pursuant to s 129(1)(c) LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the Registrar-General argued that the plaintiff is excluded from the right to compensation by reason of section 129(2)(a) of the Real Property Act 1900 (NSW) because the loss or damage was a consequence of the act or omission of the plaintiff — Where the Court found that relevant officers of the plaintiff acted upon information in the deposited plan as if they were entitled to assume its accuracy because it was contained in official plans — Where the Court found that the material cause of any loss or damage suffered by the plaintiff was an act or omission of the plaintiff for the purposes of s 129(2)(a) and that the plaintiff's responsibility for the loss or damage extended to the whole of that loss or damage — Where the Court held that the Registrar-General has established that the plaintiff is excluded from the right to compensation by reason of section 129(2)(a) LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the Registrar-General argued that the plaintiff is excluded from the right to compensation by reason of section 129(2)(b)(i) of the Real Property Act 1900 (NSW) because the loss or damage was caused by the negligent act or omission of the plaintiff's solicitors — Where the Registrar-General did not plead section 129(2)(b)(ii) with respect to the loss or damage being compensable under an indemnity given by the solicitors' professional indemnity insurer — Where the plaintiff's solicitors and the professional indemnity insurer were not joined to the proceedings — Where the Court found that the solicitors had acted pursuant to their retainer — Where the Court could not make a finding with respect to the professional indemnity insurer because of a lack of evidence — Where the Court held that the Registrar-General had not established that the plaintiff is excluded from the right to compensation by reason of section 129(2)(b) LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the Registrar-General argued that the plaintiff is excluded from the right to compensation by reason of section 129(2)(e) of the Real Property Act 1900 (NSW) because the loss or damage arose because of an error or miscalculation in the measurement of land — Where the plaintiff argued that the definition of "measurement" was limited to the process of ascertaining a size within the context of s 129(2) — Where the Registrar-General argued the definition included both the process and the outcome — Where the Court found that "measurement" had the meaning as contended for by the Registrar-General — Where the Court held that the Registrar-General has established that the plaintiff is excluded from the right to compensation by reason of section 129(2)(e) LAND LAW — Torrens title — The register — Whether a deposited plan was registered in the Torrens register under the Real Property Act 1900 (NSW) or in the register of plans under the Conveyancing Act 1919 (NSW) — Where the plaintiff argued the deposited plan was registered in the Torrens register — Where the Registrar-General argued it was registered in the register of plans — Where the Court found that the deposited plan was registered in both the Torrens register and the register of plans Legislation Cited: Civil Liability Act 2002 (NSW) Conveyancing Act 1919 (NSW) Conveyancing Legislation (Notice of Sale) Amendment Act 1992 (NSW) Local Government Act 1919 (NSW) Professional Standards Act 1994 (NSW) Real Property Act 1900 (NSW) Real Property Amendment (Compensation) Act 2000 (NSW) Real Property Amendment (Land Transactions) Act 2009 (NSW) Real Property and Conveyancing Legislation Amendment Act 2009 (NSW) Cases Cited: Australian Executor Trustees (SA) Limited v Kerr [2021] NSWCA 5 Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 Bank of Western Australia Ltd v Coppola (No 2) [2012] NSWSC 1495 Boyton v Clancy (1998) 9 BPR 16,585 Challenger Managed Investments Ltd v Direct Money Corporation Pty Ltd (2003) 59 NSWLR 452 Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694; (2007) 13 BPR 24,675 Comserv (No 1877) Pty Ltd v Figtree Gardens Caravan Park [1999] NSWSC 124; (1999) 9 BPR 16,791 Diemasters Pty Ltd v Meadowcorp Pty Ltd (2001) 52 NSWLR 572; [2001] NSWSC 495 Emma Tait Nominees Pty Ltd v Laprese [2020] VSC 508 Glensaugh Pty Ltd v Registrar-General [2001] NSWSC 1114; (2001) 10 BPR 19,311 Hawkins v Clayton (1988) 164 CLR 539 at 544; [1988] HCA 15 Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 Kirkland v Quinross Pty Ltd [2008] NSWSC 286; (2008) 14 BPR 26,979 Kumar v Registrar-General of New South Wales [2021] NSWSC 1103 Lincu v Registrar-General [2019] NSWSC 568; (2019) 19 BPR 39,351 National Australia Bank Ltd v Thirup [2011] NSWSC 911 Potts v Miller (1940) 64 CLR 282 Registrar-General v Rigby (Land and Environment Court (NSW), Bannon J, 29 June 1995, unreported) Registrar-General v Tuckfield (1991) 6 BPR 13,831 Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 Svanosio v McNamara (1956) 96 CLR 186 Thomas v Registrar-General [2018] NSWSC 1517 Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98; 81 WN (Pt 2) (NSW) 136 Voudouris v Registrar-General (1993) 30 NSWLR 195 Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd [2021] NSWSC 1415 Texts Cited: Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Company) F Ticehurst and P Blair, Baalman and Wells Land Titles Office Practice NSW (5th ed, 1998, looseleaf, Lawbook Co) Greg Stilianou, Land Titling Law and Practice in NSW (2013, Lawbook Company) R A Woodman, K Nettle, F Ticehurst, P Butt, L Hughes and J Stuckey-Clarke, Woodman & Nettle, the Torrens system in New South Wales (2nd ed, 1996, looseleaf, Thomson Reuters) Category: Principal judgment Parties: Ausbao (286 Sussex St) Pty Ltd (plaintiff) The Registrar-General of New South Wales (defendant) Representation: Counsel: G A Sirtes SC/ H Grace (plaintiff) H Altan (defendant)